Pioso v. Bitzer

• Decision Date: 15 June 1904
• Docket Number: 98
• Citation: 58 A. 891,209 Pa. 503
• Parties: Pioso, Appellant, v. Bitzer
• Court: Pennsylvania Supreme Court

58 A. 891

209 Pa. 503

Pioso, Appellant, v. Bitzer

No. 98

Supreme Court of Pennsylvania

June 15, 1904

Argued May 18, 1903

Reargued May 17, 1904

Appeal, No. 98, Jan. T., 1903, by plaintiff, from judgment of C.P. Lancaster Co., Nov. T., 1901, No. 4, on verdict for plaintiff in case of Sarah Pioso v. Martha A. Bitzer Transferee of Uriah Bitzer. Affirmed.

Feigned issue to determine the ownership of a policy of life insurance. Before LANDIS, J.

At the trial plaintiff made the following offer:

The plaintiff offers to prove by Sarah Pioso, the witness on the stand, that she cannot speak or read English and understands but very little of it; that on the day she signed the paper which Mr. Heitshu had brought to her house, her daughter Bertha called her from the kitchen to the dining room where she found Mr. Heitshu, whom she had not previously known that Mr. Heitshu said something to her daughter Bertha in English, which she, the witness, did not understand; that her daughter immediately said to her in German that Mr. Heitshu wished her to tell the witness that he had received the papers from the insurance company and had asked whether she, the witness, wanted the interest of the money. The witness replied to her daughter in German, "I need no interest, I have the money I need. You can let it stand." Her daughter Bertha then said something to Mr. Heitshu in English, which the witness did not understand; then Mr. Heitshu said, "What your daughter said is true. You can believe that and sign the paper." Then the witness signed the paper, and that the same was never read to her.

This to be followed by proof by Bertha Pioso that on the day in question she answered the door bell and admitted Mr. Heitshu, who asked if Mrs. Pioso was in. She conducted him to the dining room and called her mother, Sarah Pioso, from the kitchen to the dining room, and that no one but her mother, Mr. Heitshu and herself were present; that Mr. Heitshu had not come with her father; that Mr. Heitshu said to her in English that he came up because he had the insurance papers in his possession and the interest was due the mother; he wanted to know whether the mother wanted the interest. The daughter then communicated this in German to her mother, who answered her in German that she was in no need of money now and preferred to let it stand with the principal. That she then translated this to Mr. Heitshu, who said if that was the case she was to sign the papers he had. That he did not read the papers to them, and that she, the witness, should tell her mother that what he had said was the truth, and that she need not fear to sign her name.

This to be followed by proof by Sarah Pioso, that Sarah Pioso executed the paper C.I.L., No. 6, under the representation, with the understanding and in full reliance upon the statement of E. R. Heitshu, that its effect would be to allow the interest or earnings of the policy to be added to or accrue with the principal; that she never knew she had transferred this policy to Uriah Bitzer until in the fall of 1898, about the time when she was asked by Mr. Heitshu and Newton Bitzer to ratify the assignment.

This testimony to be followed by proof that in November, 1898, Newton Bitzer, the son and representative of Uriah Bitzer, the transferee, with Mr. Heitshu went to Philadelphia, where Sarah Pioso was then visiting, and attempted through Mr. Heitshu to read the transfer to her; that as soon as he read the name "Bitzer" she arose, said, "You deceived me before; if you had read the name Bitzer to me I would have known something was wrong and I would not have signed the paper." That she left the room immediately, refusing to allow Mr. Heitshu to finish reading the transfer.

This to be followed by proof that Mr. Heitshu, the notary public, was not in any manner an agent for the plaintiff, Sarah Pioso.

Objected to by defendant as incompetent and irrelevant.

The Court: I do not see in this case that the defendant was ever a party to the execution. It has not been shown she was. Mrs. Bitzer was not there. There is no evidence that anybody here represented her there, or Uriah Bitzer either; it is the same thing. As I understand it Mr. Heitshu went up there with Pioso. She says he was not with Pioso. That may all be true. We will give that full force. He was not with Pioso. But there is no evidence he called there as a representative of Bitzer. I do not believe this testimony is admissible. I do not think it is. I think we will have to disallow it at this time.

Plaintiff excepts.

Bertha Pioso was asked the following question put by the plaintiff:

"Q. State whether or not you faithfully translated and communicated to your mother just what Mr. Heitshu had said, while he was still there."

Objected to by defendant.

The Court: If he did not understand it he would not know. She can answer what she then did, not what she said. We will disallow the question and give you the benefit of an exception. If Mr. Heitshu understood German and understood what she said, we will allow it if you show that.

Plaintiff excepts. Bill of exceptions signed and sealed. [3]

"Q. Will you please state what reply your mother made to the statement of Mr. Heitshu, which you had translated, and whether or not you faithfully translated that reply to Mr. Heitshu?"

Defendant objects to the first part of that question.

The Court: That is disallowed, unless Mr. Heitshu understood what the mother said.

Plaintiff excepts. Bill of exceptions signed and sealed. [4]

"Q. Will you state whether or not you faithfully and accurately translated to Mr. Heitshu what your mother said to you in reply to Mr. Heitshu's statement?

Objected to by defendant.

The Court: That is disallowed. She can state what she said to Mr. Heitshu. [5]

"Q. State whether or not you communicated to your mother what Mr. Heitshu had said."

Objected to by defendant.

"Q. I am not asking the exact words, but am asking whether she communicated that to her mother."

Objected to by defendant, unless it was said in English and Mr. Heitshu understood the English. [6]

The plaintiff offers to prove by Sarah Pioso, the witness on the stand, that her daughter Bertha, in the presence of Mr. Heitshu and in his hearing, in stating the purpose for which Mr. Heitshu had come to the house, used the German word "interesse," which is used for and means in German "use money," and that she understood the word in that sense and executed the paper with the statement and a representation that thereby she would not be getting but saving the interest, or dividends, or earnings of the policy, along with the amount of the policy, and that Mr. Heitshu was not her agent in procuring the execution of the paper.

Objected to by defendant. Disallowed and plaintiff excepts. Bill of exceptions signed and sealed. [7]

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1-19) various rulings on evidence, quoting the bill of exceptions; (20) in giving binding instructions for defendant.

The judgment is affirmed.

William H. Keller, of Coyle & Keller, with him Geisenberger & Rosenthal, for appellant, cited: Com. of Mass. v. Vose, 17 L.R.A. 813; Camerlin v. Palmer Co., 92 Mass. 539; Baltimore & Ohio R.R. Co. v. Hoge, 34 Pa. 214; Wehrle's App., 189 Pa. 179; Fabrigas v. Mostyn, 20 Howard St. Tr. 81, 171; Lewis v. Eagle Insurance Co., 76 Mass. 508.

W. U. Hensel, for appellee, cited: Martin v. Berens, 67 Pa. 459; Rowand v. Finney, 96 Pa. 192; Ott v. Oyer, 106 Pa. 6; Phillips v. Meily, 106 Pa. 536; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Dick v. Irlenad, 130 Pa. 299; Irvin v. Irvin, 142 Pa. 271; Van Voorhis v. Rea, 153 Pa. 19; Keller v. B. & O.R.R. Co., 10 Pa.Super. 240; Harrold v. McDonald, 194 Pa. 359; White v. Black, 14 Pa.Super. 459; Sutch's Est., 201 Pa. 305; Hamory v. Sargent & Neale, 25 Pa. C.C.R. 191; Wodock v. Robinson, 148 Pa. 503.

Before MITCHELL, C.J., DEAN, FELL, POTTER and THOMPSON, JJ., on reargument.

OPINION

MR. JUSTICE FELL:

This was a feigned issue to determine the ownership of a policy of insurance on the life of Moses Pioso, the plaintiff's husband, and the right to a fund that had been paid into court by the New York Life Insurance Company after his death. The plaintiff was the beneficiary named in the policy if she survived her husband, and the case turned on the validity of an assignment made by her nearly four years before her husband's death to one of his creditors. Both husband and wife joined in the assignment, which was "made as collateral security for the payment of indebtedness to the said Uriah Bitzer, now and hereafter to accrue to him, by reason of his indorsement of the notes of M. Pioso & Sons." Mr. Bitzer paid three annual premiums that became due after the assignment to him, and he assigned the policy to his wife, the defendant in the issue, in part payment of a debt largely in excess of the amount of the policy, for money he had borrowed from her to pay the notes he had indorsed for Pioso & Sons. The...